Bob Buckley: Another attempt to derail a system that works well

There are two initiative petitions being circulated after the Secretary of State approved the petitions. Beware of wolves in sheep’s clothing.

A small handful of very wealthy people are once again trying to change the way judges are being appointed. They have tried to do it through the state legislature, but failed. Now, they want to take it straight to the voters in these initiative petitions which ultimately will try to change the Missouri Constitution.

A lot has been written by Ken Garten and me on this subject and most people are probably already aware of the current method for appointing judges, but I think it is important to refresh your recollection and explain the changes that are proposed and why such changes will be devastating to anyone who needs to use the judicial system.

Since 1940, Missouri has been operating under the nonpartisan court plan. It has been copied in many other states, because it is successful. Here is how the current process works. The Governor is authorized to appoint appellate judges after a nonpartisan commission selects three nominees from the applicants. There are seven people on the appellate judicial commission. Three of the members of the commission are laypeople selected by the governor. Three of the members are lawyers who are elected by the lawyers in contested elections in the three appellate divisions: eastern, western and southern. The laypersons and the lawyers serve six year terms. The seventh member is the Chief Justice of the Supreme Court which is a rotating position that changes every two years.

When there is a vacancy in an appellate judgeship, applications are submitted to the commission and there is an extensive interview process that is undertaken. The applicants submit letters of recommendation from other people who are familiar with the applicant; those recommendations don’t always come from lawyers. It is a time-consuming process. Many commissioners meet individually with the applicants before the formal interviews are ever conducted. Tough questions are asked both in the individual sessions and the formal interviews. Those who have served on the commission, even those who might have been skeptical of the process before beginning service, have endorsed the process after undertaking it.

There is no groundswell of support for making changes. The only ones who want to make changes are a handful of politicians and their wealthy donors. Ironically, the current plan was adopted prior to World War II because the public was becoming increasingly dissatisfied with the increasing role of politics in the judicial selection process. Seventy-three years later, some want to increase the role of politics in the judicial selection process.

Several states including Texas, Alabama, Illinois, Michigan, Ohio and Louisiana have served as battlegrounds for expensive, divisive and bitter judicial campaigns. Millions of dollars are spent on many of these campaigns and so the selection process depends on the candidate who can raise the most money and not the person’s qualfications.

Page 2 of 2 - According to the Missouri Secretary of State, there are two proposed initiative petitions which do the following:

* require such judges to instead be elected in partisan elections, with political parties nominating party candidates in the primary election prior to the general election;

* allow judges or judicial candidates to solicit, receive and make any legal campaign contributions or expenditures that benefit their own campaigns;

* decrease Supreme Court and Appellate Court judges’ terms from 12 years to 8; and

* increase the number of Supreme Court judges from 7 to 9?

It is estimated that the proposed changes would increase operating costs by over $1 million, and require construction costs of up to $6.2 million to establish more work space. These costs are primarily associated with increasing the number of judges. I suspect the desire to increase the number of judges is motivated by a desire to begin electing judges immediately as the judges currently on the court are in the midst of their current terms which would not be affected by any changes until their terms expire.

Horror stories abound in states that have provided for election of appellate judges. The United States Supreme Court decided a case in 2009, Caperton v. Massey, in which the court acknowledged the harmful effects of large campaign contributions in the judicial system. In that case, the head of a company spent $3 million to support a candidate for the West Virginia Supreme Court who was then elected, but refused excuse himself from an appeal involving the same company. Between 2000 and 2009, over $200 million has been spent on judicial election campaigns.

If these initiative petitions receive enough signatures, these petitions will be on the ballot next year either in August or November. There is a simple way of stopping this insanity: don’t sign the petitions. Thus, if you approached by someone asking you to sign these petitions, don’t be fooled by deceitful rhetoric. Tell the petition distributor that the current system is not broken. If you sign it, you are just opening the door for a bunch of wealthy people to select our judges. Politics has no role in selection of judges. Let’s keep it that way.

Bob Buckley is an attorney in Independence. Email him at bbuckley@wagblaw.com